I'm an Economist and Former Congressional campaign strategist and Ex-GM of Wu Tang Management. As CEO of AfricaPrebrief – I guide US-based investors in African economies. I write in memory of Jude Wanniski (polyconomics.com)

The Economic Essence Of Marriage Is Lost Between Narrow-Minded Extremes

While I have profound respect for Hernando De Soto’s insights celebrated most widely and wildly in his The Mystery of Capital (2000), I’ve never felt its premise – that ‘Third World and Communist’ countries are undercapitalized because they lack written property documents to represent assets – was completely accurate. While his understanding of conceptual power is brilliant (“Throughout history, human beings have invented representational systems – writing, musical notation, double-entry bookkeeping – to grasp with the mind what human hands never touch”), his emphasis on the ownership of things (“The single most important source of funds for new businesses in the United States is a mortgage on the entrepreneur’s house”) has been misunderstood and greatly oversold.

De Soto’s work has placed the cart before the horse – positioning property rights in the minds of economists and policy makers as more important than the culture in which they are embedded. The most important and almost always first source of capital is not a legally recognized or officially recorded asset but the trust, earnings, savings and wealth accumulated and inherited within a family or circle of friends. This makes sense, as an inner circle not only has more financial resources than a single asset can yield, but also provides other forms of support which are economic in nature. Simply representing assets with titles without acknowledging the highly sophisticated economy of a kinship system – whether household, tribe or religious community – which can exist without money or written law does not build a foundation for economic development. This is not to dismiss De Soto’s contribution in representing property rights as the lynchpin of capitalism but it is to advance the view that that of all of the pieces of paper that one could own – none, not even a mortgage or a national constitution may be more important economically than a record of marriage. That there is not an inclusion of ‘kinship,’ or ‘marriage’ in the index of Mystery Of Capital, is not insignificant.

Lost in the important family values and civil rights debate that now dominate discussions of marriage is the non-ideological fact that human beings do not mate randomly and that marriage is the premier kinship system by which intentional mating is converted into wealth and capital. What anthropologists understand better than economists and preachers is that property rights are only as good as the system of trade and exchange that makes transactions possible. No representation of assets or right to property is in and of itself the system by which it is exchanged. It is an epiphenomenon – dependent upon a commercial system not initially defined by who owns things but rather who ‘owns’ or better yet, ‘claims’ whom. Claims on identity and family are the basis of alliance and descent which determine to and from whom we trade, gift and inherit. As Robin Fox wrote in 1967, “Alliance and descent I no longer regard as competing theoretical views, but as empirical components of all kinship systems. Put simply, whatever else kinship systems do, they divide people into categories of kin and then define marriageability in terms of these categories. They define descent, if you like, and legislate alliance.”

In dismissing ‘Third World and Communist’ societies on the grounds that they lacked written systems to represent asset ownership; ‘capitalist’ property rights advocates missed a larger attribute of the kinship systems of these societies and regimes – they provide formidable and time-tested systems of kinship, alliance and descent which either have to be unwound carefully or embraced before such things as markets, currencies and educational systems take root. Of this I am reminded of the dilemma faced by American military forces in the immediate aftermath of the invasion of Iraq who quickly learned they could not secure the services of Iraqi businesspersons and engineers without such persons receiving the blessing of a local religious leader.

The simple creation of pieces of paper determining who owns what are ineffectual over time without property rights growing organically out of institutions and customs which have provided some form of stability over time. This is the Achilles heel of economic schemes promoted by development economists and nation-builders who don’t understand that formalizing a property rights system without formal recognition of a kinship system is symbol without substance. Determining what to own (representation of assets) never matters as much as who has the right to own it in partnership with whom (representation of alliance and descent).

There may be no greater economic laboratory on earth to demonstrate this than in the kinship-rich nation of Kenya, East Africa’s largest economy, currently driving a two-lane path toward economic development.

Kenya has an acknowledged property rights problem that it is humbly and ambitiously working on by developing a legal system which will establish and recognize asset ownership (and a judiciary that will enforce it). But it is doing so while recognizing that not just ownership is in need of formalization but also the customs which represent kinship. For instance Kenya’s construction and mortgage market is crippled not only by the lack of and shifting land title laws but also a vacuum in spousal rights.

Too often the attention in property rights is devoted to identification, representation and archival in a formal registry like a government court system. Here the hundreds of pages at the Republic of Kenya’s Ministry of Lands which feature the primary 3 Land Acts ( National Land Commission Act; Land Registration Act; and Land Act) are where the problem would supposedly be solved by the Disciples of DeSoto.

But the Interpretation and “Preliminary Provisions” of the 2012 Land Act will be subject to countless legal battles and election year debates because they don’t give sufficient attention to versions of kinship and its power to undermine claims on assets.

The Act’s defining the 9 ways by which land title can be acquired in Kenya – “1) Allocation 2) Land Adjudication process 3) Compulsory acquisition 4) Prescription 5) Settlement programs 6) Transmissions 7) Transfers 8) Long term leases exceeding twenty one years created out of private land or 9) Any other manner prescribed in an Act of Parliament” – is meaningless if the plumbing of kinship and marriage is not as clearly constructed.

So Kenya has gone a step further. As Kenya’s Daily Nation reports, “In addition to making provisions for the establishment of a Lands Commission to manage land issues in Kenya, the new laws also make provisions for spousal approval before using land as security in acquiring loans.” ‘Spousal approval,’ with such broad definitions and concepts of marriage (civil, customary or religious) could be a problem for a while so a big step toward a resolution of this problem was taken with the Kenyan cabinet’s approval of two pieces of legislation: “The Marriage Bill, 2012” () and “The Matrimonial Property Bill” which define marriage in clear and very fluid ways.

Although the provisions make many uncomfortable – take the negative reaction of the African Independent Pentecostal Church of Kenya Archbishop John Baptista Mugecha and the unease over the acceptance of marriage as a relationship where two people live together for more than 6 months – they provide an inclusive framework dynamic enough to integrate a society that too often has little faith in a central authority while also addressing wealth distribution inequality over time. Remember kinship and marriage determine alliance and descent and with it the inheritance of wealth.

By broadly standardizing the definition of marriage (“Marriage means the voluntary union of an adult and woman whether in a monogamous or polygamous union…”) across 6 classes – “1) any Christian denomination 2) civil marriage 3) African customary rites 4) Hindurites and ceremonies 5) Islamic law 6) and any designated faith or interest group” – while specifying matrimonial property; Kenya is laying a foundation to provide enough clarity and dynamism to resolve current issues (like sales of property by one partner without the knowledge of the other) and those likely to emerge over the next ten years.

The process and framework is as much bottom-up as top-down and with continued refinement via referendum should prove sturdy enough to serve as a pillar of Kenyan commercial society, provided that an efficient and strong enough judiciary forms in coming years.

As anyone involved in a romance, courtship or marriage can tell – mating can be a volatile and euphoric balance of art, nature and science. Yet today, in public policy discourse, its essence is lost in a fight between two sincere but often narrow-minded extremes – civil rights oriented advocates and religious fundamentalist seeking to define marriage on the basis of gender to the exclusion of other considerations. In the process both sides obscure the nature of marriage, make hypocritical arguments and perform a bit of revisionist history along the way.

The State, religious authorities and common law have been involved in an age-old battle for the jurisdiction of marriage, with the Church’s dominance of it in the West only a recent phenomenon resulting from the 18th century Hardwicke Marriage Act – the first law in England requiring a formal church ceremony for a marriage to be considered valid. That these debates today are cloaked in the language of freedom, personal choice and morality should not fool anyone into believing that marriage is not fundamentally the most important economic undertaking in any society – uniting not just individuals but potentially a network of kith and kin not only in a moment of time but also across it (see inheritance and probate laws).

The decade of De Soto and its mono-variable focus has served its purpose. It is now time to recognize that representation of kinship is at least as important as representation of assets in economic development.

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